QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| THE QUEEN (on the application of ROBERT POWELL)
|- and -
|THE BRIGHTON MARINA COMPANY LIMITED (1)
WEST QUAY DEVELOPMENT COMPANY PARTNERSHIP LLP (2)
THE MARINE MANAGEMENT ORGANISATION (3)
BRIGHTON AND HOVE CITY COUNCIL
Richard Drabble QC and Daniel Kolinsky (instructed by Addleshaw Goddard LLP) for the First and Second Defendants
Sasha Blackmore (instructed by Browne Jacobson LLP) for the Third Defendant
Hearing date: 17th June 2014
Crown Copyright ©
Mrs Justice Patterson:
i) The decision of the third defendant dated 19th December 2013 to grant consent under Section 24 of the Brighton Marina Act 1968 to permit development;
ii) The actions of the first defendant in commencing development on the 16th January 2014 and proceeding with it subsequently.
- In argument the claimant contended that there were seven issues as follows
i) Whether the development of phase 1 is authorised by Section 5(2) of the Brighton Marina Act 1968 (BMA);
ii) Whether the powers under Section 5(2) of the BMA are subject to the time limit;
iii) Whether Section 40 of the BMA is an exhaustive statement of the powers of the first and second defendants for building in the Marina;
iv) Whether a marine licence under part 4 of the Marina and Coastal Access Act 2009 can authorise that which is not permitted under the 1968 ACT;
v) Whether the claim was brought promptly;
vi) Whether promptness applies;
vii) What relief is appropriate.
The Legal Framework
The Brighton Marina Act 1968
"That the company should be authorised to construct the marina and the recreational, residential and other facilities and the road and harbour works described in this Act and to reclaim land from the sea."
"5 (1) Subject to the provisions of this Act the Company may make and maintain in the lines and situations and upon the lands delineated on the deposited plans and described in the deposited book of reference, and according to the levels shown on the deposited sections the following works, that is to say:-…
Work No. 6 A pier or breakwater commencing at a point 390 yards measured in an east-south-easterly direction from the commencement of Work No 1 and terminating at a point 220 yards measured in a southerly direction from the point of commencement;
Work No. 7 A reclamation embankment commencing by a junction with Work No. 1 at a point 195 yards measured in a southerly direction from the commencement of that work, extending in an easterly direction and terminating by a junction with Work No. 6 at a point 30 yards measured in a southerly direction from the commencement of that work;
Work No. 8 A quay or wharf (incorporating piers or stagings extending seaward therefrom) commencing by a junction with the commencement of Work No. 6, extending in an easterly direction and terminating by a junction with Work No. 3 at a point 100 yards measured in a southerly direction from the commencement of that work;…
5 (2) The Company may within the limits of deviation for the said works extend, enlarge, alter, replace or relay the same."
"23 (1) If the works authorised by section 5 (Power to construct works) of this Act are not completed before 1st October 1979, then on that day the powers by this Act granted to the Company for making and completing those works shall cease, except as to so much thereof as is then completed.
(2) On the application of the Company the Minister may by order extend the period referred to in subsection (1) of this section. "
"24 (1) A tidal work shall not be constructed, altered, extended, enlarged, replaced or relaid except in accordance with plans and sections approved by the Board of Trade and subject to any conditions and restriction imposed by the Board before the work is begun."
"40 (1) Subject to the provisions of this Act the Company may lay out and develop any lands to which this section applies (or any part of Works Nos. 1 to 9 inclusive) by the erection thereon of buildings and other structures and works, including without prejudice to the generality of the foregoing, car parks (either over or underground), filling stations, hotels, restaurants, club premises, offices, theatres, cinemas, casinos, dance halls, ice rinks, playgrounds, boatyards, bowling alleys, shops, houses, flat and other residential accommodation and in connection with such development may construct, sewer, pave, flag, channel and kerb streets, bridges, and ways:
Provided that any development authorised by this section shall not by virtue only of this section be deemed for the purposes of the Town and Country Planning General Development Orders, 1963 to 1965 and any enactment amending or replacing the same, to be carried out in pursuance of an Act which designated specifically both the nature of the development and the land upon which it may be carried out.
40(2) The lands to which this section applies are those parts of the foreshore, the bed of the sea and other lands which lie between Works 1 and 3 and are situate within the limits of deviation of Works 7 and 8 and landward of those works (but excluding any part of Undercliff Walk)"
The Marine and Coastal Access Act 2009
"Any function which relates to and whose exercise is capable of affecting the whole or any part of the UK marine area."
"For the purposes of this Act it is a licensable marine activity to do any of the following…
7. To construct, alter or improve any works within the UK marine licensing area either-
a) In or over the sea, or
b) On or under the sea bed."
"(1) in determining an application for a marina licence (including the terms on which it is to be granted and what conditions, if any, are to be attached to it) the appropriate licensing authority must have regard to-
a) the need to protect the environment,
b) the need to protect human health,
c) The need to prevent interference with the legitimate uses of the sea, and such are the matters as the authority thinks relevant.
(3)The appropriate licensing authority must have regard to any representations which it receives from any person having an interest in the outcome of the application."
The Claimant's Case
Is phase 1 of the development authorised by Section 5 (2) of the BMA ?
Is Section 5 (2) subject to the time limit contained in Section 23 ?
Whether Section 40 of the BMA is an exhaustive statement of the powers of the first and second defendants for building in the Marina
Whether Part 4 of the Marine and Coastal Access Act can authorise that which is not permitted under the 1968 Act ?
Was the claim brought promptly?
Does promptness apply?
"In the case of an application for a licence to authorise such activities as are mentioned in item 7 and section 66(1) the appropriate licensing authority must have regard (amongst other things) to the effects of any use intended to be made of the works in question when constructed, altered or improved."
What relief is appropriate?
The case for the first and second defendants
Third defendant's submissions
Discussion and conclusions
"As the existing pier is being extended so as to produce a platform on which buildings F1 and F2 will eventually be located. Within the extended pier will be located the underground car park. The extended pier will continue to serve at all times existing break water function"
"Solid structure extending into the sea or a river to protect a harbour and form a landing stage for vessels, a breakwater a mole. Also a similar structure supported on pillars of girders for use as a pleasure promenade or landing stage." "
i) between works numbers 1-3,
ii) within the limits of deviation works 7-8,
iii) landward of works 7 and 8,
iv) excluding Undercliff Walk.
"What in short is striking about Section 71 is not its omission of an express exclusion of common law rights but rather its omission of any provision recognising or giving effect to such rights."
"If two remedies cover precisely the same ground and are inconsistent with each other, then the common law remedy will almost certainly have been excluded by necessary implication. To do otherwise would circumvent the intention of Parliament,. A good example of this is Marcic where a sewerage undertaker was subject to an elaborate scheme of statutory regulation which included an independent regulation with powers of enforcement whose decisions were subject to judicial review. The statutory scheme provided a procedure for making complaints to the regulator. The House of Lords held that a cause of action in nuisance would be inconsistent with the statutory scheme. It would run counter to the intention of Parliament."
i) On the 4th July 2006 planning permission was granted for mixed use development at Brighton Marina West Quay and adjoining land. The claimant contested the grant of planning permission by contending that the proposed scheme would conflict with the BMA.
ii) On the 17th November 2006 consent was granted to the first defendant under Section 55 (1) of the BMA to vary the height restriction contained in Section 59 (1) of the BMA to permit implementation of the 2006 planning permission.
iii) On the 22nd February 2007 DEFRA granted a marine licence for the development;
iv) By 2008 as evidenced in a letter from the interested party dated 8th September 2008 steps had been taken to implement the planning permission including the construction of the access road.
v) On the 12th February 2012 the interested party approved a non-material amendment to the 2006 planning permission.
vi) On the 7th May 2013 Professor Watts wrote to the third defendant about the proposed test piling.
vii) On the 13th May 2013 the interested party granted permission for variation of condition 70 on planning permission 2006/01124.
viii) On the 16th July 2013 the third defendant responded to Professor Watts informing him of the issue of a marine licence for the ground investigation work for Brighton marina. The MMO expressed the view that they did not consider ground investigation works would adversely affect the marina.
ix) On the 23rd August 2013 the first defendant made an application to the third defendant for a marine licence under part 4 of the MCAA to undertake phase 1 of the outer harbour development at Brighton Marina. The public register records an intention to implement the commencement of piling on the 6th January 2014.
x) On the 30th October 2013 the claimant's solicitors were instructed and wrote to the third defendant about the outstanding marine management licence application. They were concerned about the application of the BMA and Directive 2011/92/EU.
xi) On the 19th December 2013 the third defendant granted consent under Section 24 of the BMA for the works defined in the marine licence application which accompanied the application under Section 24 of the BMA. The letter says,
"This consent accompanies the favourable marine licence determination made by the MMO under part 4 of the Marine and Coastal Access Act 2009 for the works."